Plaintiffs Charles D. Wiggins and Susan Wiggins (the Wiggins) appeal by right the circuit court’s order denying their motion for summary disposition, granting summary disposition in favor of defendants William L. Mahler and Paula M. Mahler (the Mahlers), granting summary disposition in favor of defendants Thomas A. Heckman and Margaret A. Heckman (the Heckmans), and dismissing all claims against the city of Burton (the City) “without prejudice so that the [Wiggins] and the City... can follow the procedure ... laid out in MCL 280.75.” The City cross-appeals the same circuit court order. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
The dispute in this case involves the issue of surface-water drainage on three neighboring parcels of real property located in the City. The Heckmans have lived at 5217 Maple Avenue and the Mahlers have lived at 5245 Maple Avenue for some time. A subdivision known as Maplewood Meadows No. 1 was laid out and platted, apparently in the mid-1990s. Maplewood Meadows No. 1 lies to the east of the Heckman parcel and the Mahler parcel and abuts both parcels along portions of their eastern property lines.
The Wiggins purchased Lot 51 in Maplewood Meadows No. 1, commonly known as 5257 Walnut Drive, on December 19, 2003. A warranty deed executed on December 19, 2003, conveyed Lot 51 to the Wiggins “[sjubject to all existing building and use restrictions, easements and zoning ordinances, if any.” As shown on the final plat of Maplewood Meadows No. 1, a large section of the Wiggins parcel (more specifically, the west and north sides of Lot 51) is encumbered by a “PRIVATE EASEMENT FOR STORM DETENTION.”
The Heckmans and Mahlers assert that the construction of Maplewood Meadows No. 1 caused significant
Thomas Heckman apparently lodged several complaints with the City concerning this surface-water drainage problem, dating as far back as June 1995. The minutes of the Burton City Council indicate that Mr. Heckman appeared before the council on several occasions to complain about the “flooding problems on his property.” On May 21, 2007, the Burton City Council voted 5 to 1 to approve the expenditure of $1,750.00 to pay for a “relief drain project at 5245 Maple and 5217 Maple Ave[nue].” The City’s plan was to install individual drains on the Heckman and Mahler parcels, and to connect these individual drains to the area of the existing storm-detention easement on the Wiggins parcel by way of a 180-foot drainage pipe.
In May 2007, the Heckmans and Mahlers signed documents with the City acknowledging that the City would construct and install drains on their respective properties and that the drainage project, when completed, would “belong solely to the [Heckmans and Mahlers] and will be the [Heckmans’ and Mahlers’] responsibility to maintain/repair.” Subsequently, the City contracted with Doan Enterprises, Inc. to complete the proposed drainage project. In late 2007, Doan
In March 2008, the Wiggins filed a five-count complaint in the Genesee Circuit Court, setting forth claims entitled “QUIET TITLE” (count 1), “DECLARATORY RELIEF” (count 2), “TRESPASS” (count 3), and “NUISANCE” (count 4) against the City, the Mahlers, the Heckmans, Doan Enterprises, and certain agents of the City.
excavated a drainage trench that originated from the Mahler Property and ran in a northerly direction from the Mahler Property in a relatively straight line through the Heckman Property on the eastern edge of the Heckman Property ... and continued the excavation in a northerly direction in a straight line on the Heckman Property along the eastern edge of the Heckman Property proximate to the area where the Heckman Property borders the Wiggins Property for a distance of approximately thirty (30) feet, at which point [the City] then redirected the trench at an approximate 45-degree angle and entered into and upon the Wiggins Property and continued its excavation of the trench, removing sod, turf and soil from the Wiggins Property, and terminated the trench approximately in themiddle of the Wiggins’ backyard immediately adjacent to their childrens’ [sic] swing set.
The Wiggins alleged that neither the City, nor the Heckmans, nor the Mahlers, nor Doan Enterprises, nor any of the City’s agents had ever sought permission to enter onto their property, to excavate the ditch, or to lay the drainage pipe. The Wiggins also alleged that
[t]he [e]ffect of the project... was ... an alteration and diversion of the natural flow of the surface water from the Heckman Property and the Mahler Property, causing an intentionally focused, increased and concentrated flow of the surface water from those properties directly onto the Wiggins Property, causing significant damages thereby.
The Wiggins asserted that none of the defendants had been authorized to enter onto their property, to excavate the ditch, or to lay the drainage pipe in question. The Wiggins alleged that since the City’s construction of the drainage system, a substantially increased amount of water had begun to flow onto their property and that a permanent “retention pond” had formed in their backyard.
In count 1, the Wiggins sought an order quieting title to their property. The Wiggins acknowledged the existence of the storm-detention easement that encumbered the west and north sides of their parcel, but emphasized that they remained the fee owners of the property. The Wiggins contended that by constructing the drainage system, the City (and presumably the other named defendants) had asserted property interests adverse to their own. The Wiggins claimed that by asserting such adverse claims, the City and other named defendants had jeopardized and interfered with their interests in the property. The Wiggins asked the circuit court to quiet title in them.
In count 3, the Wiggins alleged that the named defendants had trespassed on their property in two different ways. First, the Wiggins alleged that the City, Doan Enterprises, and the City’s agents had physically trespassed on their property to excavate the ditch and install the drainage pipe. The Wiggins contended that the Heckmans and Mahlers had either specifically agreed to, or acquiesced in, this act of trespassing. Second, the Wiggins alleged that the City, the Heck-mans, and the Mahlers had committed additional acts of trespass by improperly diverting surface waters onto the Wiggins parcel through the drainage pipe. The Wiggins sought an injunction requiring the removal of the drainage pipe and enjoining the further diversion of surface water onto their property. The Wiggins also sought money damages for the alleged trespasses that had already been committed.
In count 4, the Wiggins alleged that the presence of the drainage pipe and the diversion of surface water onto their property were conditions that unreasonably interfered with their use and enjoyment of the property. They asserted that these conditions constituted a nuisance. The Wiggins sought money damages as well as abatement of the alleged nuisance under MCL 600.2940.
Lastly, in count 5, the Wiggins claimed that the City’s actions had resulted in an unconstitutional taking of a portion of their property without just compensation.
On April 20, 2009, the Mahlers filed a “MOTION FOR PARTIAL SUMMARY DISPOSITION AS TO MONEY DAMAGES” pursuant to MCR 2.116(0(10). The Mahlers asserted that their only involvement with this entire case had been their act of giving the City permission to enter upon the Mahler parcel to construct a drain. Curiously, the Mahlers’ sole legal argument was that the Wiggins had not established a prima facie case of negligence against them. However, as noted previously, the Wiggins never pleaded a claim of negligence against the Mahlers.
Also on April 20, 2009, the City filed its own motion for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Among other things, the City argued that the Wiggins’ claims should be dismissed “because the Office of the Genesee County Drain Commissioner approve[d] of the placement of the drainage pipe” and because the Wiggins’ claims were “barred by governmental immunity.” The City argued that the construction of the drainage pipe on the Wiggins parcel and the diversion of excess surface waters from the Heckman
The City additionally argued that, pursuant to § 192 of the Land Division Act, MCL 560.192, the drainage of storm water in a subdivision is within the exclusive jurisdiction and control of the county drain commissioner. The City asserted that because the Genesee County Drain Commissioner had approved the creation of the storm-water-detention easement at the time Maplewood Meadows No. 1 was first platted, and because the Genesee County Drain Commissioner had also approved the construction of the drain leading from the Heckman and Mahler parcels to the Wiggins parcel, the Wiggins’ claims against the City should all fail as a matter of law.
With respect to the Wiggins’ quiet-title claim, the City argued that the claim was in reality an attempt to revise a recorded plat. According to the City, because the Wiggins had not proceeded in accordance with certain requirements set forth in the Land Division Act, MCL 560.101 et seq., their mislabeled quiet-title claim
The Wiggins responded to defendants’ motions for summary disposition and requested summary disposition in their favor pursuant to MCR 2.116(I)(2). The primary argument raised by the Wiggins was that although the storm-detention easement encumbering their property required them to accept the surface waters that naturally flowed into the area of the easement, defendants had possessed no right to construct the drain at issue in this case, which artificially increased and concentrated the amount of water flowing onto the Wiggins parcel.
The Wiggins pointed out that the Heckmans’ and Mahlers’ motions addressed the issue of “negligence” only, but that no negligence claim had ever been pleaded against any of the defendants. The Wiggins noted that the Mahlers and Heckmans had not even addressed the trespass, nuisance, and quiet-title claims in their motions for partial summary disposition. With regard to the City’s motion for summary disposition, the Wiggins argued that the drainage pipe constructed by the City was not within the scope of the preexisting storm-detention easement. The Wiggins acknowledged that
In reply, and without any supporting authority, the City argued that the storm-detention easement encumbering the Wiggins parcel fell within the definition of “drain” contained in § 3 of the Drain Code, MCL 280.3. The City also contended that the storm-sewer plan for Maplewood Meadows No. 1 supported its position that the storm-detention easement was required to accept all surface-water runoff from the Heckman and Mahler parcels. The City pointed out that, at the time Maple-wood Meadows No. 1 was initially platted, the plattors apparently intended to drain all surface waters collected in the area of the storm-detention easement into the subdivision’s storm sewers. The City submitted a map of the originally proposed storm-sewer plan for
The City then argued that the drain at issue in this case had not increased the historical and natural flow of water from the Heckman and Mahler parcels to the Wiggins parcel. The City contended that, in the state of nature, all surface waters had historically flowed from the Heckman and Mahler parcels to the Wiggins property. According to the City, however, the construction of Maplewood Meadows No. 1 had somehow altered this historical and natural flow of surface waters, causing the surface waters to stop flowing from the Heckman and Mahler parcels, and instead to begin collecting on those parcels. The City argued that the installation of the drain leading to the Wiggins parcel had merely reestablished the historical and natural flow of surface waters into the area of the storm-detention easement, and that “from a hydrologic standpoint, the surface water from the Heckman and Mahler properties is currently going where it historically went.”
The circuit court held a hearing on the parties’ motions for summaiy disposition. The City argued that it was entitled to governmental immunity with respect to the Wiggins’ claims. The circuit court noted that the Wiggins had also pleaded an eminent-domain claim, and that the City would not be entitled to immunity with regard to this takings claim. The court looked to
The circuit court posed a question to counsel for the City:
What about the argument that.. . [w]hen the [d]etention easement was created, that it dealt with a natural How, that which by the hands of Mother Nature and God would run into that basin, whereas now by man’s act a pipe has been run into the basin creating more water than originally designed . .. ?
The City’s attorney responded, “[Fjirst of all, according to the contour map of the area prior to the construction of this subdivision, the water’s going now where it naturally went; so, from a historical perspective, [the water] has not been diverted.” The court agreed that “[t]here is a natural flow that’s suggested in that topographical map,” but noted that the Wiggins parcel “accepted that natural flow and everything was appropriate and understood until suddenly a pipe was put in.
The Mahlers’ attorney argued that her clients could not be held liable for trespass or nuisance because they had not entered upon the Wiggins property. She argued that the Mahlers had merely authorized or consented to the City’s construction of the drain. She did not believe that this was sufficient to create liability on the part of her clients. The Heckmans’ attorney made essentially the same argument.
The Wiggins’ attorney argued that “when this easement was established there was never any intention that there was to be a drain installed where they ultimately installed it[.]” The Wiggins’ attorney went on to argue that
when the drain commissioner... approved the plat and when the people from the City of Burton approved the plat, the intention was, in fact, that this private easement for storm detention would accommodate the natural flow of water through the drainage system which is. .. evident within the plat itself.
The Wiggins’ attorney fully admitted that his clients’ parcel was encumbered by the “private easement for storm detention” shown on the final plat of Maplewood Meadows No. 1, but argued that the City and other defendants were attempting to unilaterally expand the scope of the easement from a storm-water-detention easement to a drainage easement. Counsel argued that such a unilateral expansion of the scope of the easement was impermissible and not within the contemplation of the parties at the time the easement was created. The
After entertaining the attorneys’ arguments, the circuit court announced that it had discovered § 75 of the Drain Code, MCL 280.75, during its research. The court read aloud from MCL 280.75, which provides in pertinent part:
If all persons whose lands would be traversed or damaged by the proposed drain or drains shall not have executed a release of the right of way, and all damages on account thereof, within 60 days after the entry of the first order of determination, the commissioner shall, as soon as practicable, make application to the probate court of the county in which such lands are situated, for the appointment of 3 special commissioners, who shall be disinterested resident freeholders of the county, but not of the township or townships affected by such drain, to determine the necessity for the taking of private property for the use and benefit of the public, and the just compensation to be made therefor.
The circuit court asked the parties whether they had followed the procedures set forth in MCL 280.75. The parties confirmed that they had not. Counsel for the City asserted that the procedures set forth in MCL 280.75 were inapplicable to this case. She also asserted that because of Thomas Heckman’s repeated complaints at city council meetings, the City was required to act quickly to resolve the drainage problem. Counsel suggested that the City would not have had time to follow the statutory procedures set forth in MCL 280.75. But the circuit court maintained that the procedures set forth in MCL 280.75 should have been followed before the drain was installed. The circuit court took the motions under advisement.
Nevertheless, the court went on to dispose of the Wiggins’ claims against the City on the basis of MCL 280.75, even though that statute had never been raised by the parties. The court stated that MCL 280.75 “specifically lays out the procedure an aggrieved landowner is to use in a circumstance such as ours[.]” In the end, the court “dismisse[d] the case against the City without prejudice so that the [Wiggins] and the City can follow the procedure as laid out in MCL 280.75.”
II. STANDARDS OF REVIEW
The scope and extent of an easement is generally a question of fact that is reviewed for clear error on appeal. Blackhawk Dev Corp v Village of Dexter,
III. CLAIMS AGAINST THE HECKMANS AND MAHLERS PERTAINING TO THE PHYSICAL DRAIN ITSELF
The Wiggins first challenge the circuit court’s dismissal of their claims against the Heckmans and Mahlers pertaining to the construction and continuing presence of the drain itself. The Wiggins argue that the installation and physical presence of the drainpipe on their property constituted a trespass and a nuisance. The Wiggins assert that by authorizing or ratifying the City’s installation of the drain, the Heckmans and Mahlers committed the torts of trespass and nuisance. The Wiggins also assert that the Heckmans and Mahl
A. TRESPASS AND NUISANCE
The Wiggins first contend that the installation, construction, and continuing presence of the physical drainpipe itself constitute a trespass and nuisance for which the Heckmans and Mahlers are liable. We agree that the installation and continuing presence of the drain constitute a trespass, but we find that they do not constitute a nuisance.
The language of an express easement is interpreted according to rules similar to those used for the interpretation of contracts. See Little v Kin,
The language used in a plat is subject to similar rules of interpretation. “When interpreting... plats, Michigan courts seek to effectuate the intent of those who created them.” Tomecek v Bavas,
As noted earlier, and as shown on the final plat of Maplewood Meadows No. 1, the easement that encumbers portions of the Wiggins parcel and the four other adjacent lots is described as a “PRIVATE EASEMENT FOR STORM DETENTION.” In other words, according to the plain language of the plat, the scope of the easement is limited to storm detention. We conclude that the language of this easement is clear and unambiguous, Little,
We find support for our conclusion in Schmidt. In that case, a drainage ditch carried surface-water runoff from the dominant estate onto the servient estate. Schmidt,
However, the Schmidt Court rejected this argument, noting that the language of the express easements had
As in Schmidt, the express storm-detention easement in this case “made no mention of the drain” in question. Id. Nor did the storm detention easement contain any other language relating to the issue of drainage in general. The plattors of Maplewood Meadows No.l certainly could have included language relating to the issue of drainage in the text of the easement at the time it was created, but they did not. As explained previously, use of the servient estate “must be confined strictly to the purposes for which [the easement] was granted or reserved,” Delaney,
The right to exclude others from one’s property and the right to enjoy one’s property are two distinct
In certain jurisdictions, “it has become difficult to differentiate between trespass and nuisance” because “the line between trespass and nuisance has become ‘wavering and uncertain.’ ” Id. at 64 (quotation marks and citations omitted). However, this Court has recognized a desire to “preserve the separate identities of trespass and nuisance.” Id. at 65. Thus, in Michigan, “[r]ecovery for trespass to land... is available only upon proof of an unauthorized direct or immediate intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession.” Id. at 67. “Once such an intrusion is proved, the tort has been established, and the plaintiff is presumptively entitled to at least nominal damages.” Id. In contrast, “[w]here the possessor of land is menaced by noise, vibrations, or ambient dust, smoke, soot, or fumes, the
Turning to the present case, because the installation of the drain on the Wiggins parcel exceeded the scope of the storm-detention easement, it was necessarily “unauthorized.” See id. Moreover, the installation of the drain was unquestionably a “direct. . . intrusion of a physical, tangible object” onto the Wiggins parcel. Id. Therefore, the installation of the drain on the Wiggins parcel constituted a trespass to property. Id.; see also Schadewald v Brulé,
Having concluded that the installation and presence of the drain on the Wiggins parcel constituted a continuing trespass (but not a nuisance) under Michigan law, it is necessary to determine whether the Heckmans and Mahlers may be held liable for this trespass and
The circuit court observed that the Heckmans and Mahlers had not constructed the drain themselves and had not personally set foot on the Wiggins parcel. Instead, the circuit court noted, the Heckmans and Mahlers simply requested drainage relief from the City. The court ruled that “merely requesting relief from a city is not sufficient to rise to the level of trespass,” and therefore granted summary disposition in favor of the Heckmans and Mahlers with respect to the trespass claim. We conclude that this ruling was in error. The Heckmans’ and Mahlers’ requests for drainage relief from the City, and subsequent authorization for the City or its agents to construct the drain in question, were sufficient acts to give rise to trespass liability. “It is a well-established principle of law that all persons who instigate, command, encourage, advise, ratify, or condone the commission of a trespass are cotrespassers and are jointly and severally liable as joint tortfeasors.” Kratze v Indep Order of Oddfellows, Garden City Lodge,
Having determined that both the Heckmans and Mahlers are liable in trespass for the installation and continuing physical presence of the drain, we next consider what relief is available to the Wiggins vis-á-vis the Heckmans and Mahlers. It is well settled that a plaintiff who establishes the tort of trespass may recover money damages from the trespassing defendants. As noted earlier, once the tort of trespass has been established, “the plaintiff is presumptively entitled to at least nominal damages.” Adams,
In addition to money damages, a plaintiff may be entitled to injunctive relief to enjoin a continuing trespass. It is true that “ ‘[i]njunctive relief is an extraordinary remedy that issues only when justice requires,
With respect to the drain at issue in the present case, it is clear that the Wiggins are entitled to at least nominal damages, and additionally any actual damages, resulting from the Heckmans’ and Mahlers’ trespass. It is also clear that the drain, which has already been installed on the Wiggins parcel, constitutes a trespass of a permanent and continuing nature. See id. Accordingly, the Wiggins are entitled to the entry of injunctive relief enjoining the Heckmans’ and Mahlers’ use of the drain and requiring the Heckmans and Mahlers to remove that portion of the drain that touches or encroaches on the Wiggins property.
In sum, we reverse the circuit court’s grant of summary disposition in favor of the Heckmans and Mahlers with respect to the Wiggins’ trespass claim pertaining to the drain itself and remand for entry of judgment in favor of the Wiggins on this claim. On remand, the circuit court shall enter an injunction enjoining the Heckmans’ and Mahlers’ use of the drain and requiring the Heckmans and Mahlers to remove that portion of the drain that touches or encroaches on the Wiggins parcel.
We also conclude that the circuit court erred by failing to consider the Wiggins’ request for declaratory relief as it related to the Heckmans and Mahlers. Although it has become commonplace in this state for a plaintiff to assert a request for declaratory relief as a separately labeled cause of action within his or her complaint, this is technically improper because “declaratory relief is a remedy, not a claim.” Mettler Walloon, LLC v Melrose Twp,
Declaratory Relief determining and declaring that no Defendant named in this action possesses any right, title, or interest in the Wiggins Property that would allow or authorize any Defendant to enter upon Plaintiffs’ private property and excavate land, soil and turf and effect the installation of a drainage pipe .... [Emphasis added.]
Therefore, the circuit court erroneously stated in its opinion and order that “[t]he Mahler and Heckman Defendants are not parties to the [Wiggins’] request- ... for Declaratory Relief....” We reverse this portion of the circuit court’s opinion and order, and remand for the entry of appropriate declaratory relief with respect to the Wiggins’ underlying claims. On remand, the
C. QUIET TITLE
We also conclude that the circuit court properly declined to consider the Wiggins’ quiet-title claim as it related to the Heckmans and Mahlers. Our review of the complaint has established that the Wiggins asserted their quiet-title claim against the City only, and not against the Heckmans and Mahlers. The circuit court was therefore correct when it stated in its opinion and order that “[t]he Mahler and Heckman Defendants are not parties to the [Wiggins’] request to quiet title . . . .” Because the quiet-title claim was never asserted against the Heckmans and Mahlers, the circuit court did not err by failing to consider the claim in relation to those defendants.
IV CLAIMS AGAINST THE HECKMANS AND MAHLERS PERTAINING TO THE FLOW OF WATER
The Wiggins do not merely argue that the installation and continuing physical presence of the drain constituted a trespass or a nuisance. They also argue with equal force that the increased flow of water onto their land through the drain — wholly separate and apart from the presence of the drain itself — constitutes a trespass and a nuisance. Many of the same rules applicable to our earlier discussion are also applicable here. However, there are also different rules of law,
A. TRESPASS AND NUISANCE
Although the flow of water onto the Wiggins parcel through the drain in question did not constitute a nuisance, we conclude that there remained a genuine issue of material fact concerning whether the flow of water constituted an actionable trespass.
It has been “the settled law of this State” for more than a century that the natural flow of surface waters from the upper, dominant estate forms a “natural servitude” that encumbers the lower, servient estate. Carley v Jennings,
By way of example, in Schmidt,
It is clear that the owner of the lower or servient estate must accept surface water from the upper or dominant estate in its natural flow, and equally clear that the owner of the dominant estate may not require the owner of the servient estate to accept a greater runoff by increasing or concentrating the flow. [Id,.]
Because the owner of the dominant estate did not have an easement that permitted him to cast such “greatly increased” amounts of surface water upon the servient estate, this Court determined that he had exceeded the scope of the natural servitude that encumbered the servient estate and therefore affirmed the circuit
As these rules make clear, the Wiggins parcel is required to accept the surface-water runoff that naturally flows to it from the neighboring dominant estates. After all, as noted earlier, the natural flow of surface waters from the upper, dominant estate forms a “natural servitude” which arises by operation of law and encumbers the lower, servient estate. Carley,
The Wiggins assert that by authorizing the installation of the drain at issue in this case, the Heckmans and Mahlers have increased the amount of water which would otherwise naturally flow onto the servient estate, and have therefore exceeded the scope of both the express storm-detention easement and the implied natural servitude encumbering the Wiggins parcel.
If it is determined on remand that the flow of surface water onto the Wiggins parcel has been materially increased beyond that which has historically and naturally flowed to it from the dominant estates, this will constitute an independent trespass to the Wiggins parcel. It is beyond dispute that a defendant’s unauthorized act of causing excess waters to flow onto another person’s property constitutes a trespass. See Herro v Chippewa Co Rd Comm’rs,
And as stated earlier, “[i]t is a well-established principle of law that all persons who instigate, command, encourage, advise, ratify, or condone the commission of a trespass are cotrespassers and are jointly and severally liable as joint tortfeasors.” Kratze I,
B. DECLARATORY RELIEF
In addition to seeking declaratory relief with respect to the installation and continuing physical presence of the drain itself, the Wiggins also sought declaratory relief with respect to the alleged increased flow of water onto their property. Consequently, if it is determined following remand that the flow of surface water onto
V CLAIMS AGAINST THE CITY
The Wiggins also argue that the circuit court erred by dismissing their claims against the City and by relying on the statutory procedures set forth in § 75 of the Drain Code, MCL 280.75. We agree that the circuit court erred by relying on MCL 280.75. We also agree that the circuit court erred by dismissing the Wiggins’ inverse-condemnation claim, at least in part. However, with respect to the Wiggins’ tort claims against the City, we remand for a determination whether the City is entitled to governmental immunity.
A. THE DRAIN CODE
As explained previously, the circuit court ultimately dismissed all claims against the City “without prejudice so that the [Wiggins] and the City can follow the procedure ... laid out in MCL 280.75.” MCL 280.75 provides in its entirety:
If all persons whose lands would be traversed or damaged by the proposed drain or drains shall not have executed a release of the right of way, and all damages on account thereof, within 60 days after the entry of the first order of determination, the [drain] commissioner shall, as soon as practicable, make application to the probate court of the county in which such lands are situated, for theappointment of 3 special commissioners, who shall be disinterested resident freeholders of the county, but not of the township or townships affected by such drain, to determine the necessity for the taking of private property for the use and benefit of the public, and the just compensation to be made therefor. Such application shall be in writing, and shall set forth:
First, The fact that a petition for a drain was made and when, filing with said court a certified copy of such petition, also giving the route, survey and specifications of said drain as set forth in the first order of determination;
Second, That an order determining the necessity for such drain was made by the commissioner or drainage board, giving the time when such order was made, in accordance with such route, survey and specification, as above set forth;
Third, (1) The several descriptions or tracts of land with the names of the owner or owners of every such tract who have refused or neglected to execute a release of right of way and damages in any way arising or incident to the opening or maintaining the said proposed drain (2) the several descriptions or tracts of land owned by any minor, incompetent person, unknown persons or nonresidents of the township or townships, the execution of a release of right of way and damages for which have been neglected or refused; (3) it shall not be necessary to set forth in said application to the probate court the names of the several owners nor the description of the several tracts or parcels of land liable to an assessment for benefits, in case the drain applied for should be located and established, except those who have not released the right of way and through whose lands the drain passes; nor shall the same be included in the citation issued from the probate court.
MCL 280.75 is contained in chapter 4 of the Drain Code, MCL 280.71 et seq. Reading the statutes contained in chapter 4 together and in harmony with one another, see People v Stephan,
In addition, it is unclear to us how the City and the Wiggins would be able to follow the procedures set forth in the Drain Code at this point in time when the proper authorities never sought to establish the drain under the Drain Code in the first instance. In essence, the parties would have to “start over” even though the drain is already in existence. The circuit court’s determination that the parties should effectively start over and follow the relevant procedures set forth in MCL 280.75 does not strike us as a logical result. We conclude that the better course is to remand this matter to the circuit court with instructions to enter an injunction requiring the Heckmans and Mahlers to remove the drain. If the City then wishes to reestablish the drain after the drain is removed pursuant to this injunction, the parties will be better positioned to follow the procedures set forth in the Drain Code for establishing and constructing new drains.
B. INVERSE CONDEMNATION
We next conclude that there remained a genuine issue of material fact concerning whether the City’s installation of the drain itself constituted a taking of private property without just compensation. Both the United States and Michigan constitutions prohibit the taking of private property for public use without just compensation. US Const, Am V; Const 1963, art 10, § 2; Dorman v Clinton Twp,
It is clear that the construction and installation of the drain itself was an affirmative act by the City or its agents, specifically directed toward the Wiggins’ property, which had the effect of limiting the use of the Wiggins parcel. Id. What is not clear is how much damage was caused by the City’s installation of the drain and whether the City’s actions were “ ‘a substantial cause of the decline of [the Wiggins parcel’s] value.’ ” Hinojosa,
In contrast, we conclude that any material increase in the flow of water through the drain — even if established on remand — could not have constituted a taking as a matter of law. It is well settled that a governmental actor may cause a taking of private property by flooding the property or diverting excess surface water onto the property. Peterman v Dep’t of Natural Resources,
C. GOVERNMENTAL TORT IMMUNITY
The circuit court did not reach the issue of the City’s liability on the Wiggins’ remaining tort claims, choosing instead to dismiss these claims against the City without prejudice on the basis of MCL 280.75. We have already concluded that the circuit court’s reliance on MCL 280.75 was erroneous.
The City argues that even if the circuit court improperly invoked the Drain Code to dismiss the Wiggins’ claims, it is entitled to governmental immunity. As the City points out, our Supreme Court has made clear that the tort immunity granted to governmental entities is broad, and that there is no trespass-nuisance exception to governmental immunity. Pohutski,
On remand, the circuit court will be required to consider whether the City is entitled to governmental immunity with respect to the Wiggins’ tort claims.
We affirm the circuit court’s dismissal of the Wiggins’ nuisance claim against the Heckmans and Mahlers. We also affirm the circuit court’s determination that the Heckmans and Mahlers were not parties to the Wiggins’ quiet-title claim.
However, we reverse the circuit court’s dismissal of the Wiggins’ trespass claim against the Heckmans and Mahlers. By authorizing or ratifying the City’s installation of the drain itself, the Heckmans and Mahlers committed a trespass as a matter of law. Moreover, there remained a genuine issue of material fact concerning whether the alleged increased flow of water onto the Wiggins parcel constituted an additional trespass by the Heckmans and Mahlers. We also reverse the circuit court’s determination that the Heckmans and Mahlers were not parties to the Wiggins’ request for declaratory relief.
On remand, the circuit court shall declare that the Heckmans and Mahlers trespassed on the Wiggins parcel as a matter of law by authorizing or ratifying the City’s installation of the drain. The court shall also take additional evidence and conduct further proceedings concerning (1) whether the alleged increased flow of water onto the Wiggins parcel constituted an additional trespass by the Heckmans and Mahlers, and (2) the appropriate amount of damages owed by the Heckmans and Mahlers for trespassing on the Wiggins parcel. At a minimum, the court shall award the Wiggins nominal damages for all trespasses committed by the Heckmans and Mahlers, shall enter injunctive relief directing the Heckmans and Mahlers to remove the drain, and shall grant other declaratory relief consistent with this opinion.
We reverse the circuit court’s dismissal of the Wig
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs under MCR 7.219, a public question having been involved.
Notes
While it seems that the word “retention” would have been more appropriate than the word “detention” in this context, the word “detention” is used on the subdivision’s final plat and has been used by the parties throughout the pendency of this case.
Doan Enterprises and the named agents of the City have been dismissed from the case and are not involved in the instant appeal.
Three days later, the Heckmans filed their own “motion for partial summary disposition as to money damages” pursuant to MCR 2,116(0(10), adopting and fully concurring in the motion filed by the Mahlers.
The Mahlers filed a motion partially concurring in the City’s motion for summary disposition. The Mahlers agreed with the City’s contention that the Wiggins’ claims should fail as a matter of law because the drainage project at issue in this case had been approved by the Genesee County Drain Commissioner.
It is not clear whether the proposed storm sewers were ever constructed in Maplewood Meadows No. 1 or whether the storm-detention easement was ever connected to the subdivision’s storm sewers as apparently intended by the plattors.
The county drain commissioner or governing body of the municipality must give final approval before the plat of a subdivision may be finalized and recorded. MCL 560.192.
We reiterate that the Heckmans and Mahlers — and not the City — are the owners of the trespassing drain. As explained previously, the Heck-mans and Mahlers signed documents with the City acknowledging that after the City had constructed and installed the drain, the drainage project would “belong solely to the [Heckmans and Mahlers] and will be the [Heckmans’ and Mahlers’] responsibility to maintain/repair.”
Although these common-law rules were originally developed for use in rural settings, see Village of Trenton v Rucker,
Naturally, the City is not entitled to governmental immunity with respect to the Wiggins’ inverse-condemnation claim. Electro-Tech, Inc v HF Campbell Co,